Laxmi Dutta Jain vs Giri Raj Singh

Suresh Kait, J.—Vide this petition, the Petitioner/complainant has assailed judgment dated 01.07.2011 passed by learned Metropolitan Magistrate, whereby the Respondent/accused has been acquitted in a case u/s 138 Negotiable Instrument Act, 1881 (hereinafter referred to as ''Negotiable Instruments Act'').

Learned Counsel for the Petitioner submits that the cheque was admittedly issued by the Respondent in favour of the Petitioner. It is also admitted that the cheque was dishonoured due to ''insufficient funds''. He further submits that the cheque in question was given against the sale consideration of the house. Further submits that there is no ''stop-payment'' of the cheque in question by the Respondent.

Learned Trial Court has summarised that the sale deed was executed between the Petitioner and wife of the Respondent, for a total sale consideration amount of Rs. 3,32,000/- out of which Rs. 1,22,000/- was paid in cash. The balance amount of Rs. 2,10,000/- was to be paid by way of cheque issued by the Respondent which was subsequently dishonoured; against which, the Petitioner filed the complaint against the Respondent u/s 138 Negotiable Instruments Act.

The defence of the Respondent has also been recorded by the learned Magistrate, inter alia, that Respondent had admitted the execution of the sale deed as well as handing over of the cheque in question, however, he has taken the defence that the said cheque was given by way of security and the amount thereof was paid in cash on the very day of execution of the sale deed, by withdrawing the amount of Rs. 1,30,000/- from his bank and Rs. 1,60,000/- from the account of his wife and placed the same on record i.e. the copies of their account in the bank passbook as Ex.DW1/A to Ex.DW1/D.

Further, after the above payments,Respondent demanded the cheque to be returned, however, Petitioner stated that he had misplaced the same, and whenever same shall be retrieved, it shall be handed over to Respondent. The Respondent in caution made ''stop-payment'' instructions to the bank vide letter Ex.DW2/E.

Learned Trial Judge after hearing both parties has recorded his findings that the sale deed Ex.CW1/DA clearly contains the recital that the Petitioner has received a sum of Rs. 3,32,000/- by way of cash & nothing remains due. Further, possession of the subject matter has also been handed over. The above fact has also been corroborated by the evidence of DW-1 Joginder Singh Nambardar, who was a witness to the said sale deed, categorically stated that, Respondent Giriraj Singh at the time of the execution of sale deed on 04.07.2008 paid in cash Rs. 2,10,000/-.Respondent has also placed on record the statement of his account and that of his wife as Ex.PW2/A and Ex.PW2/B which shows that Rs. 1,30,000/- and Rs. 1,60,000/- were withdrawn from their respective banks accounts on the same day as that of the sale deed.

Learned Trial Court has also recorded, that the Respondent has placed on record a letter Ex.DW2/E which he wrote to the bank for ''stop-payment'' the letter also mentioned the fact of having paid the said sum which goes on to prove that the defence of the Respondent was not an afterthought but very well documented even before the complaint being filed by the Petitioner.

The Trial Court has also noted that, the fatal factor to the version of the Petitioner is that the Respondent had issued a post date cheque of Rs. 2,10,000/- dated 06.08.2008 to be drawn on Gurgaon Gramin Bank. However, same was presented for encashment in the month of January, 2009.

Learned Trial Court has recorded that it is highly unnatural that when the sale deed was executed between the parties, and the possession handed over, then why was there a delay in presenting of the cheque by the Petitioner.

Learned Counsel for Petitioner admitted that the sale deed was executed and registered before the concerned registrar, the possession was handed over. But due to ''insufficient funds'' in the account, the cheque in question was dishonoured by the bank. Therefore, at the request of the Respondent/accused , he executed the documents and presented the cheque in question after the execution of the sale deed handing over the possession to the Respondent/ accused.

The cheque was firstly dishonoured because of the ''insufficient funds'' and at that time, the Respondent had no liability to pay the amount to the Petitioner .Thereafter, the Petitioner has been paid amount in cash, which is recorded in the sale deed. It is highly unnatural in today''s era that a person executed the sale deed would hand over the possession of the property, without receiving the consideration amount in advance. Moreso, the cheque in question has not been mentioned in the sale deed. Rather, the cash amount in consideration is mentioned. Which proves that the transaction was executed in cash.

Let us presume that the Petitioner had faith in he Respondent/accused then why did the Petitioner present the cheque in question so belatedly.

I note that the Trial Court has also recorded that the Respondent/accused demanded the cheque to be returned from the Petitioner many times, however, the Petitioner denied and stated that the cheque had been misplaced. He made no effort in asking the Respondent to stop payment or cancel the aforesaid cheque.

In view of the above discussion, I find no discrepancy in the judgment passed by learned Metropolitan Magistrate on 01.07.2011.

Finding no merit in the Crl.L.P. No. 402/2011, I hereby dismiss the same with no order as to costs.